Divided 6-3, the Texas Supreme Court ruled that a former church member could not recover emotional damages flowing from intentional torts allegedly inflicted as part of a religious practice.

The plaintiff (then a teenager) attended several church events at which members “laid hands” on her and prevented her from moving as she thrashed about struggling to get free. It was disputed whether the pinning down or the thrashing was cause or effect. When she later developed emotional problems related to the incident, she and her family sued. In a mandamus proceeding that percolated up to the court of appeals before trial, the court of appeals found most of her claims to violate the First Amendment, leaving in place only those claims the church did not challenge. (( As the majority here described it, that prior court of appeals decision threw out the plaintiffs’ claims for “negligence, gross negligence, professional negligence, intentional infliction of emotional distress, child abuse, and loss of Laura’s consortium.” None of those claims were before the Texas Supreme Court in this appeal. ))

At trial, she won a jury verdict on her remaining battery and false imprisonment claims. The jury awarded damages for pain and suffering, loss of earning capacity, and medical expenses. The trial judge rendered judgment for her on the false imprisonment claim. The court of appeals reversed in part, reducing the total damage award by eliminating the award for loss of future income as being too speculative. The court of appeals affirmed the remainder of the judgment. The court of appeals did not reach the constitutional questions because it held that the positions taken by the church in its prior mandamus proceeding were inconsistent with the constitutional arguments that the church advanced in this appeal.

The Texas Supreme Court disagreed and dismissed the entire case for violating the First Amendment. It held that tort claims seeking emotional damages for church practices would improperly require the courts to inquire about the church’s belief.

What practices are protected and which practices go too far?

In this case, although Laura’s secular injury claims might theoretically be tried without mentioning religion, the imposition of tort liability for engaging in religious activity to which the church members adhere would have an unconstitutional “chilling effect” by compelling the church to abandon core principles of its religious beliefs.

Still, the majority does not say that it is drawing a bright-line rule. The majority recognizes that some conduct might yet cross the line into a realm where emotional damages could be awarded. The Court gives this caveat: “And while we can imagine circumstances under which an adherent might have a claim for compensable emotional damages as a consequence of religiously motivated conduct, this is not such a case.”

How to tell whether a particular claim is barred or permissible? The answer, apparently, is that the court has to examine the nature of the religious practices and whether the practice comports with church doctrine (so as to be expected by a member):

The “laying of hands” and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter.

This portion of the Court’s analysis suggests that the majority perceives the plaintiff’s emotional damages as flowing from her subjective views about the activity rather than a more objective view of them — a distinction that echoes other areas of tort law, which distinguish between subjective and objectively “outrageous” conduct.

The Court does not elaborate on how to apply its distinction consistent with the First Amendment’s prohibition on courts trying to evaluate the truth or falsity of religious doctrine.

The dissents

The three dissenting Justices each wrote a separate opinion. Both the Chief Justice and Justice Johnson set out suggestions for how the trial court could have distinguished between improper damages attributable to beliefs and permissible damages attributable to bodily injury. Justice Green joined the Chief Justice’s discussion on that point and added his view why neutral, non-religious principles should be applied.

The Chief Justice’s opinion doesn’t pull punches on the constitutional question, accusing the majority of pushing the Free Exercise Clause beyond its traditional bounds by suggesting that it bars any claim that does not manifest in physical injury:

This is common sense: many experiences—including some sexual assaults and certain forms of torture—are extremely traumatic yet result in no serious physical injury.

Given this, it is not surprising that the Court cites no case holding that the First Amendment bars claims for emotional damages arising from assault, battery, false imprisonment, or similar torts. I can cite a case, heavily relied upon by the Court, for the opposite proposition: Tilton. There we held that “[t]he Free Exercise Clause never has immunized clergy or churches from all causes of action alleging tortious conduct,” …

Judicial estoppel is now much narrower in Texas

The Chief Justice also criticized the majority’s handling of the procedural issue in the case — whether the church should be “judicially estopped” from arguing its constitutional points in this appeal after having argued in a previous appellate court that these claims were permitted under the constitution.

The rule announced by the majority to resolve the “judicial estoppel” was that the doctrine does not apply to different phases of the same lawsuit.

That formulation surprised me. We already have doctrines of law that apply to protect these interests in subsequent lawsuits (res judicata and issue preclusion, among others), and those doctrines already have well-developed law supporting them. Judicial estoppel was a doctrine available whenever needed to protect the integrity of a prior court ruling, even (as I understood it) one that fell short of a final judgment. (( This is not to say that the finality of the judgment was not a factor. The test asks whether a litigant was advantaged by the Court’s ruling, and the finality of that decision seems like a valid item to be weighed on the equitable scales. ))

If Texas no longer has a body of judicial estoppel that is distinct from its claim preclusion law, is there a doctrine that applies to prevent a party from changing its view on a legal issue — even after the court has relied on its representation (such as a concession) to make a ruling? Can litigants take one legal position to get dismissal of some claims and then reverse to the opposite legal position to attack the other claims?

The Chief Justice’s criticism of the majority’s formulation of this rule seems appropriate. The majority could have reached the same result in this case simply by characterizing the evolution of the church’s legal position as a matter of emphasis rather than contradiction. The majority would not then have needed to announce a rule that seems to consign judicial estoppel to such a narrow category of cases that it will no longer be a particularly useful equitable tool. (( If it can only be asserted in future cases, then it seems it will always be duplicative of issue preclusion and claim preclusion. If it has any meaning whatsoever in the future, it will be to fill in the gaps of those legal doctrines with some equitable fuzziness, permitting litigants to argue about whether — even if they fail to meet the bright-line requirements for issue preclusion — they should nonetheless win because of a doctrine of “judicial estoppel.” ))

How early in a suit against a church can the action be dismissed? Can plaintiffs save their cases by disavowing emotional damages?

Another procedural wrinkle in the case is the Court’s ultimate choice to dismiss this action (rather than simply to reverse).

This is at least a little unusual. That’s because the church conceded (and the Court seemed to accept) “that the First Amendment does not protect it from [the plaintiff’s] claim of physical injury.”

Instead, the church attacked only the fact that she was seeking emotional damages: “But Laura’s case was not about her physical injuries. Although she suffered scrapes and bruises during these events, her proof at trial related solely to her subsequent emotional or psychological injuries.”

If that position is accepted, then Texas courts do have jurisdiction over intentional tort claims against churches to the extent that they seek damages for bodily injury rather than emotional damages. Had the evidence shown, say, that she suffered a broken arm in the process, “the church concedes” (and the Court seems to accept) that a court could hear her claim for medical bills.

This fine-grained distinction raises a thorny set of procedural questions for the next case. At what point can the trial court dismiss an action outright? If a plaintiff seeks an element of “bodily injury” damages, can the action survive through trial? Does the court “dismiss” only the elements of damages that are barred while retaining jurisdiction over the other elements of damages? Is the appropriate vehicle for that a plea to the jurisdiction filed early in the case? If so, should any disputed fact questions be resolved as they would be in assessing the State’s sovereign immunity?